The current debate over guns can get entirely too emotional for rational discussion. How can it be otherwise when, on the one hand, you have the parents of those whose children were killed at places like Newtown and, on the other, the owners of guns who cherish their firearms almost as much as they do their lives?
Those who have children (or grandchildren) and do not own (and have never owned) guns are incensed by the seeming rigidity of those who refuse any regulation of the kind of guns that can be owned or of the way in which they can be purchased.
Those who have grown up with guns and use them for hunting or for target shooting or just have them for the sense of safety and security it gives them are adamant that the right to own those guns must never be threatened by any kind of restriction on their availability.
The legal debate over guns is only slightly less histrionic. The current majority view (at least in terms of the decisions of the Supreme Court) is that the Second Amendment to the Constitution guarantees the right of gun ownership. The minority view (espoused by the four Supreme Court Justices who dissented to the key decision on this point) is that the Second Amendment does not confer that individual right.
The actual wording of the amendment in question is the cause for the disagreement. It reads as follows: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
That’s it in its entirety. There isn’t a second sentence or a Part B or a definition of “well regulated militia.” It just says what it says; the founders left it to all of us to figure out what it means.
The truth is that, as with many provisions of the Constitution, even if we had those founders assembled today to tell us, they probably couldn’t. Much of the Constitution, as Jack Rakove wonderfully documents in his 1997 Pulitzer Prize book, “Original Meanings: Politics and Ideas in the Making of the Constitution,” was deliberately written in ambiguous language or with undefined terms precisely so that everyone could see in it what they needed to see so as to be able to support its ratification.
For years (two centuries, actually) the Supreme Court was content to leave well enough alone, thereby allowing the separate states to regulate or not regulate gun ownership as they saw fit. But the current Court addressed the issue head on several years ago by taking up an appeal from Washington, DC. In the Heller case, the five-member majority ruled that possession of handguns (to include rifles and shotguns) for lawful reasons, such as personal safety within the home, was protected by the Second Amendment.
The Court’s opinion did leave room for the regulation of guns. It clearly provides that sales can be restricted to felons and the mentally ill and that guns can be prohibited in public places like schools and government buildings. Similarly, it allows for restrictions on “dangerous or unusual weapons.”
The dissenting Justices did not read the amendment to provide an individual right to bear arms apart from military or state militia service. They would have allowed greater limitations on gun ownership, such as Washington, DC had imposed in the ordinance that the majority ruled unconstitutional. (The ordinance prohibited DC residents from keeping guns in their homes.)
Whatever disagreement still exists on the meaning of the Second Amendment, it is clear that the Court would not sanction a right to own any armament. Even the majority limits the right to those firearms “in common use at the time.” Thus ownership of a nuclear bomb would not be protected; neither, presumably, would tanks or missiles. Assault-style automatic and semi-automatic rifles and pistols that can kill scores of people in less than a minute are equally susceptible to regulation by the majority’s opinion.
And yet, the opposition to any form of regulation of the ownership of weapons is considered unconstitutional and un-American by the most virulent gun rights advocates. They use the “slippery slope” argument to rail against such modest efforts as President Obama proposed this week.
But the reality is that those rapid-fire killing machines, the kind that are not “in common use,” are falling into far too many murderous hands. And while attempting to control access to them by denying rightful possession to the mentally ill and convicted felons may seem a good solution, the truth is that the Newtown killer got his guns from his mother’s lawful possession of them.
Thus, the knee-jerk, easy-as-pie solution is among those proposed by Obama: disallow the ownership of high-powered assault-style firearms by anyone. It would solve the problem, on paper at least, since if none of those types of weapons existed, they couldn’t be used to kill innocent children.
But that proposal, even if it ever should be enacted into law, would be violated by thousands of Americans who already own such weapons and don’t want to give them up.
For, in truth, it isn’t the Constitution that protects the ownership of these weapons of mass destruction; it’s the history and tradition of the country and its people that have been part of its culture since the first settlers saw the first buffalo, or fought the first native American tribe, or discovered that a six-shooter could shoot six bullets before you needed to reload.
Every generation has added to the lore of our culture of violence. In the last century, that violence was restricted to war movies and the film noir and Western genres. Today, movies are loaded with gratuitous violence and body counts are in the hundreds before the first scene is over. And video games feature graphic depictions of bodies being blown to bits.
We can try to legislate gun control, and more power to the president for taking up that fight. But in the end, guns aren’t our biggest problem. Our culture is.